CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Turner v HammondCare [2022] NSWPIC 442	
		
APPLICANT:	Suzanne Turner	
		
RESPONDENT:	HammondCare 	
		
Member:	Catherine McDonald	
		
DATE OF DECISION:	5 August 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Date of injury and consequent determination of pre-injury average weekly earnings; section 16 injury of the Workers Compensation Act 1987; Westpac Banking Corporation v Hungerford, P & O Berkeley Challenge Pty Ltd v Alfonzo considered; determination of date of injury in the context of intercurrent conditions; Held — award for the applicant.
	
determinations made:	The Commission finds:
1.	The deemed date of injury under s 16(1)(a) of Workers Compensation Act 1987 (the 1987 Act) was 27 July 2021.
2.	The applicant’s pre-injury average weekly earnings were $634.25
The Commission determines:
3.	The respondent is to pay the applicant weekly compensation at the following rates:
(a)	$602.54 under s 36 of the 1987 Act from 14 October 2021 to 13 January 2022, and
(b)	$507.40 under s 37 of the 1987 Act from 14 January 2022 to date and continuing.

	

STATEMENT OF REASONS
BACKGROUND
1.	Suzanne Turner was employed by HammondCare at Home (HammondCare) as a community care worker. She alleged that she suffered a psychological injury on 30 March 2018 as a result of events in the course of her employment. Ms Turner claims weekly compensation from 14 October 2021 and medical treatment expenses.
2.	After initially declining the claim, HammondCare now accepts that Ms Turner suffered a psychological injury and that she has no current work capacity. There is therefore no dispute that Ms Turner is entitled to compensation calculated under s 36 (1) and s 37(1) of the Workers Compensation Act 1987 (the 1987 Act).
3.	Ms Turner and HammondCare disagree as to the date of the injury and consequently as to what her pre-injury average weekly earnings (PIAWE) were.
PROCEDURE 
4.	The claim was listed for conciliation conference and arbitration hearing on 8 June 2022 when Mr Barter of counsel appeared for Ms Turner and Mr Grant of counsel appeared for HammondCare. 
5.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
6.	At the request of the parties, orders were made for written submissions.
7.	I was informed at the conciliation conference that Dr Davies had examined Ms Turner at the request of HammondCare and that his report was provided to Ms Turner’s solicitors but was not relied on in the proceedings.
EVIDENCE
8.	The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)	Application to Resolve a Dispute and attached documents (ARD);
(b)	Reply attached to HammondCare’s Application to Admit Late Documents dated 12 May 2022; 
(c)	Ms Turner’s Application to Admit Late Documents dated 25 May 2022, and
(d)	HammondCare’s Application to Admit Late Documents dated 2 June 2022.
9.	The date of injury claimed in the ARD is 30 March 2018 though Mr Barter said in his submissions that Ms Turner no longer relied on that date. Ms Turner claims compensation from 14 October 2021.
10.	Ms Turner said in her statement dated 15 March 2022 that she commenced work on a permanent part time basis and was moved to full time employment from 5 July 2018. She said she was subjected to bullying by a supervisor and case manager, Mr Wright. She annexed a four page diary of events - which she called “bullying incidents” - commencing on 4 February 2019 and ending on 9 November 2021. In her statement she described a number of occasions on which requests for leave were declined. 
11.	On 11 June 2020 Ms Turner spoke with her area manager and her supervisor was changed so that she was reporting to Ms George. Despite that, she continued to receive telephone calls from Mr Wright who was rude and unpleasant.
12.	Ms Turner said that on 1 July 2020 she told her general practitioner, Dr Syed, that she was having a tough time with work and was feeling teary and stressed. She continued to work but she believes that she reported symptoms of tiredness, insomnia and recurrent headaches. She said that on 7 January 2021 she commenced annual leave and on 21 January 2021, while on leave, she began to feel unwell and was admitted to hospital for two weeks. After her discharge, she remained unwell and did not return to work. 
13.	On 27 July 2021 Ms Turner saw her general practitioner and said that she was experiencing anxiety as a result of bullying by her case manager since 2019 and she was worried about going back to work. Dr Syed provided a certificate of capacity and referred Ms Turner to a psychologist. Her employment was terminated on 5 November 2021.
14.	Ms Turner said that she was diagnosed with depression following the death of her husband in 2014 and was prescribed medication which controlled her symptoms so that she was able to lead a fairly normal life.
15.	The following relevant entries appear in the notes attached to the statement. The following entry was made for 3 June 2020:
“Isaac phoned me while I was driving and said he wants to have a meeting about my sick leave, I told him every time I was off work, I had a doctor certificate. I did not have the guts to say to him that the time I was having off was because of his constant bullying. I was too scared to report it to People Services because of who his father is.”
16.	In respect of 11 June 2020 Ms Turner wrote:
“I called Annette Ablott (area manager) and told her I could not cope with Isaac Wright bullying me anymore. Immediately Annette said she would transfer me to Claire’s Team, I had just got home at 5pm from work and was still sitting in my car when Claire called me. I told Claire what has been going on for the last 2 years of being bullied and constantly spoken down too.
…
By then I was suffering with major anxiety every time my phone would ring, I was wondering what was going to happen next. I tried to stay focused on the elderly I looked after and I needed to work as I have a mortgage to pay.”
17.	In respect of 29 June 2020 Ms Turner wrote:
“After work 5.30pm, I went straight to the doctor as my arms and abdominal area were so itchy, I had scabies, so given scripts to start killing the scabies. I spoke to Claire about Workers Compensation, HammondCare did not want to cover me. I called Ombudsman, they told me to call NSW SafeWork with that I was given a Claim No. I was experiencing asthma and anxiety.”
General practitioner
18.	The notes of Moorebank Shopping Village Medical Centre begin in 2007 and show that Dr Syed has been treating Ms Turner since 2014. The notes detail pharmaceutical and counselling treatment after the death of Ms Turner’s husband in 2014 and as a result of other issues on many occasions. Several documents which set out Ms Turner’s medical history refer to depression in 2009 and a Mental Health Care Plan was prepared which recommended Cognitive Behavioural Therapy (CBT).
19.	On 1 February 2019 Dr Syed noted that Ms Turner was “feeling down, teary” but the reasons recorded were personal and social and there was no reference to work. A similar history was noted on 26 July 2019 though Dr Syed also noted “loves her job” and proposed a change to Ms Turner’s anti-depressant medication from Cymbalta to Lexapro. A review was undertaken for that purpose on 30 July 2019. A Mental Health Care Plan was prepared on 5 August 2019 and the medication was changed back to Cymbalta due to side effects. The Care Plan set out the following relevant history:
“Husband died in really bad circumstances, son moved to town, Foster daughters were taken away by false accusation. Too much to deal with, think about past makes her really depressed and anxious.”
20.	On 20 August 2019 Dr Syed noted that Ms Turner was still very depressed. On 17 December 2019 Dr Syed recorded “long counselling for stress” without describing the cause. On 23 April 2020 Dr Syed noted “feeling bit low, depressed, missing her husband” and provided a certificate for one day off work. Certificates were provided for days off in respect of a upper respiratory tract infection in April and May.
21.	On 29 June 2020 Dr Syed recorded that Ms Turner had contacted scabies from a client.
22.	On 1 July 2020 Dr Syed recorded:
“Mental Health Consultation – 2713
stressed teary
work is giving hard time to accept the liabilities
had two warnings before which she thinks was not her fault
teary
miss her family
long counselling
ask for claim no and will do W/C”
23.	On 6 July 2020, Dr Syed noted that “work accepted the liabilities, still rashes.” Ms Turner saw Dr Syed or other doctors in the same practice on a fortnightly basis. On 7 September Dr Syed noted “feeling so sad”. 
24.	On 21 September 2020 she recorded after a telehealth consultation:
“been tired and feels headachy
took a day off
so needd certi
not happy with the work load now
needs to speak to the bosses about that
if not better tom please then come abd have a check up [sic]”
25.	Ms Turner saw Dr Syed on the following day but the notes relate only to other health conditions. On 19 October 2020 Dr Syed recorded “long counselling, father is very sick in Queensland, trying to go”. On 22 October, Dr Khan recorded that Ms Turner was “[s]tressing about her father who is unwell and in is QLD.” On 26 October 2020 Dr Syed recorded that Ms Turner had requested a medical certificate because she “felt low” and Dr Syed “suggested needs to do CBT.” On 4 December 2020, Dr Syed recorded that Ms Turner had contracted an infection while in Tweed Heads for her father’s funeral.
26.	Ms Turner consulted Dr Syed by telehealth on 7 January 2021, saying that she felt tired and had mild headaches which were better after rest. On 18 January she had a recurrence of scabies.
27.	On 22 January 2021 Ms Turner was admitted to hospital where she remained for 11 days. The discharge summary from Liverpool Hospital diagnosed “likely viral polyarthritis”.
28.	Ms Turner continued to consult Dr Syed on a regular basis. In June 2021 Dr Syed noted that Ms Turner was to undergo weight loss surgery and a Mental Health Care Plan was prepared “for pre-op counselling as suggested by Dr Durmush.” The care plan in the file records the presenting problem as “Preop Op Counselling. B/G of Anxiety.” Dr Syed noted that Ms Turner’s condition before treatment was “mild anxiety and depression.”
29.	On 19 July 2021 Dr Syed noted:
“having issues with work
non medical can sort with tem
cancelled the surgery this friday
for gastric sleeve no one at home to look after her
so continue diet pan” [sic].
30.	On 27 July 2021 Dr Syed recorded:
“likes to go for w/C of bullying and Anxiety since 2019 by a particular case manager who was letting her down and bullying her all the time dismissive
she fell she was let down by him, she loved her job but was afraid to go back
she mentioned it to me as well so many time and i advised her to talk to authority but was moved under different manager for time being, but it was still very stressful
likes to do w.C also centrelink certi is done, for her resolving weaknes symtome and toreness after viral infection.” [sic]
31.	A certificate was provided but on 30 July Ms Turner telephoned and “wants date to be changed for date of injury”. On 6 August 2021, Dr Syed referred Ms Turner to a psychologist.
32.	An incomplete and therefore undated medical certificate nominates the date of injury as 3 January 2018 and the cause of the injury is “Anxiety related to Bullying at work by a particular case manager at work” [sic]. It may be the initial certificate because the section at the bottom of page 1 is completed. The injury was related to work because:
“This particular manager was bullying her at work, making her uncomfortable, dismissive and creating stress, Anxiety and Depression got worse secondary to that.”
33.	In answer to a question about relevant pre-existing factors Dr Syed wrote “stable Depression which got worse after above.” Ms Turner was certified unfit from 6 August to 6 September.
34.	There are other certificates of capacity in the file and they date from late 2021. The date of injury is recorded as 30 January 2018 on those certificates.
35.	On 2 October 2021 Dr Syed recorded:
“telling me the her W/C got rejected
thats why i was asking her to get all the evidence, l had an impression its going to be rejected. but she was pushing to do it” [sic].
Dr Morris
36.	Dr Morris, psychiatrist, examined Ms Turner at the request of her solicitors and reported on 2 March 2022. Ms Turner told him that the first incident which upset her was in January 2018 when the assistant to her manager criticised her unfairly in front of a client. She said that Mr Wright also criticised her unfairly “all the time” but she felt scared about making a complaint about him because his father worked in management of HammondCare. Ms Turner said that Mr Wright told her once that she was “passive aggressive” which greatly upset her and on another day he called her into a meeting and, for two hours, criticised her unfairly. Ms Turner told Dr Morris that she felt very upset at the end of the meeting and was in tears. She said she became depressed and anxious and was not able to cope with her work. She told Dr Morris that on 11 June 2020 she rang another manager and said that she could not cope with the bullying anymore and she was transferred to work with Ms George. She said that Mr Wright kept phoning her and his manner remained unpleasant and she continued to feel depressed and anxious. Ms Turner told Dr Morris that she went on holidays on 7 January 2021 but was still anxious and worried about her return to work. She did not return to work after she became sick with a virus which to which “developed into arthritis”.
37.	Dr Morris recorded that Ms Turner had a period of grief after her husband died suddenly in 2014 and she had suffered with depression and anxiety since then, being initially treated with Lovan and then on with Cymbalta from 2015. She told Dr Morris that before her work problems began, the medication was controlling her symptoms of anxiety and depression.
38.	The documents provided to Dr Morris included Dr Syed’s clinical notes since at least 2014. He diagnosed persistent depressive disorder with anxious distress which was caused by the work-related stressors. He considered that she required more intensive psychiatric and psychological treatment and said that she is only on half the recommended maximum daily dose of her medication. Dr Morris considered that her continuing capacity for work is caused by a psychiatric condition and he said that her condition had not reached maximum medical improvement.
HammondCare’s evidence
Ms George
39.	Claire George prepared a statement dated 1 September 2021. Ms George said that Ms Turner had taken substantial sick leave in the time she had been her supervisor. She and Mr Wright met with Ms Turner about some performance issues on 12 June 2020. It was in that meeting that Ms Turner was told that she would report to Ms George from then on.
40.	Ms George said Ms Turner was to be on annual leave from 11 to 18 January 2021. On 6 January she ceased work early because of a headache then had three days off. Her annual leave then commenced and on 18 January 2021 she contacted HammondCare and said she had contracted scabies and would be on sick leave from 19 to 29 January. On 27 January Ms Turner telephoned Ms George from hospital and said that she needed to take another three weeks off. On 10 February Ms Turner told Ms George that she hoped to return to work on 8 March 2021 but she continued to submit medical certificates until July 2021.
41.	A letter from Ms George of HammondCare to Ms Turner dated 14 July 2021 appears in the Reply. Ms George wrote seeking Ms Turner’s intentions about her employment, noting that Ms Turner had not worked since 6 January 2021. The letter read in part:
“We are aware that a workers compensation claim was made on 1 July 2020 in relation to scabies. This matter was resolved and a full clearance to return to work was provided, effective 17 July 2020. At that time, you made a claim for Workers Compensation, which has since been resolved.
The last correspondence I had with you was via email on 4 May 2021, when you submitted your most recent medical certificate. I note that it stated you would be unfit for work until at least 3 August 2021 and the prognosis is uncertain. While the document listed the various symptoms you have been experiencing, and the treatment provided to date, it contains no advice about a likely time frame for your recovery.
As you would be aware, there are also a number of performance-related issues that remain outstanding and these will need to be addressed when you are cleared fit to return to work.
…
I ask that you please contact me directly by phone or email by no later than 4:00pm on Monday 19th July 2021, to provide an update and confirm your employment intentions. If I do not hear from you, or you do not provide any further information that may assist, a decision will be made about whether to terminate your employment.
You remain on leave without pay and will be required to obtain full medical clearance before any return to work is considered.”
42.	Ms George said in her statement that Ms Turner responded to her by email on 19 July 2021 and this was the first time she had “highlighted” that she felt bullied by Mr Wright. 
43.	HammondCare’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 October 2021 denying the claim on the basis that Ms Turner had not suffered an injury. The insurer said there was no contemporaneous evidence that Ms Turner suffered an injury on or about 11 June 2020 or in 2018. It also relied on s 11A of the 1987 Act. The disputes as to injury and s 11A are no longer pressed but the issue of the date of injury remains. 
44.	The s 78 notice said that it would take effect from 14 October 2021. That is the only explanation in the evidence for the commencement date of the claim.
45.	HammondCare did not rely on any medical evidence. It did serve statements from other witnesses to which I was not taken in submissions.
SUBMISSIONS
Ms Turner
46.	Mr Barter began his submissions by highlighting a series of possible dates of injury. He said that the date of injury in the ARD of 30 March 2018 should be 30 January 2018 which was consistent with the claim form and the insurers s 78 notice. He said that evidence in support of that date is sparse but it is to be found in the history given to Dr Morris. 
47.	The first incident of which Ms Turner complains was on 14 January 2019 based on the annexure to her statement. He said that date was also not pressed because it did not result in any identifiable economic incapacity. Further dates on which behaviour occurred which Ms Turner believed to be bullying were set out in the list of events and the most significant was a complaint regarding Mr Wright to the area manager, Ms Ablott, on 11 June 2020 which is referred to in Ms Turner’s statement and in Dr Morris’s report. Mr Barter said those dates were also not pressed. However, he said that Ms Turner perceived continuing behaviour of that nature until she took annual leave on 7 January 2021 and that the symptoms result from the nature of her work experience over the period leading up to that leave.
48.	Mr Barter said that the condition is properly described as a disease contracted by a gradual process to which s 15 of the 1987 Act applies. Ms Turner relies on Dr Morris’s diagnosis that her condition was caused by the work-related stressors she experienced while working for HammondCare between October 2017 and January 2021. She also relies on Dr Morris’s history that she was anxious and worried about her return to work even when on holidays. Mr Barter said that Ms Turner would have been entitled to claim compensation then instead of taking annual leave and despite the incapacitating virus she contracted while on holidays.
49.	Mr Barter also noted that if Dr Davies’ opinion was preferred, the condition would be described as an aggravation and s 16 of the 1987 Act would apply but the principles were the same. I note that HammondCare did not rely on Dr Davies’ report.
50.	With respect to the meaning of “incapacity” in s 15, Mr Barter referred to the decision of Keating P in Westpac Banking Corporation v Hungerford (Hungerford) and the reference to the Court of Appeal decision in SAS Trustee Corporation v O’Keefe:
“In O’Keefe, Handley AJA, McColl JA agreeing, set out a useful summary of the relevant principles. His Honour said:
‘95. 	The Court has decided that incapacity in s 16(1)(a)(i) means incapacity for which weekly compensation is or can be claimed: GIO Workers Compensation (NSW) Ltd v GIO General Ltd (GIO) (1995) 12 NSWCCR 187, 196 per Sheller JA; P&O Berkeley Challenge Pty Ltd v Alfonzo (Berkeley) [2000] NSWCA 214; (2000) 49 NSWLR 481, 487 per Priestley JA; and Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277, 1 DDCR 701 (Stone) at [5] per Handley JA, and [37] per Hodgson JA.’”
51.	Mr Barter said that Ms Turner could have claimed weekly compensation from 7 January 2021 so that the date of injury is 6 January 2021.
52.	Mr Barter said that PIAWE is calculated under Sch 3 to the 1987 Act, citing cl 2:
“2.	Meaning of ‘pre-injury average weekly earnings’
(1)	‘Pre-injury average weekly earnings’, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.
…
(2)	Except as provided by this clause (or by regulations made under this clause), in calculating the ‘pre-injury earnings’ received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3)	The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period) -
(a)	to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b)	to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
…”
53.	Mr Barter said that it was necessary to look at a “relevant period” of 52 weeks ending immediately before 6 January 2021. Using the figures provided by HammondCare, PIAWE was $929 and there was no reason why bonuses should be deducted.
HammondCare
54.	Mr Grant provided a chronology of dates relevant to the issue of the correct date of injury. I have set out that chronology in full because it highlights important dates.
“10 October 2017	The Applicant commenced working with the Respondent as a Care Worker initially in a part-time position which then became full-time on 5 July 2018. It should be noted that the Applicant did however have a well documented history of psychological illness prior to this time (see GP notes, Dr Midhat Syed A44).	
26 July 2019	The Applicant consulted Dr Syed with symptoms of anxiety and depression associated with the Applicant missing her husband. It is clear from the doctor’s notes that the Applicant had issues unrelated to her work that were causing her to have psychological/psychiatric symptoms.	
11 June 2020	The Applicant spoke to Annett Ablott about Isaac Wright and the Applicant’s manager is changed to Claire George. No complaints are made by the Applicant that relate to any other person in the Respondent’s staff and Claire George in particular, however the Applicant says that from time to time she received rude telephone calls from Isaac Wright and on one occasion in December 2020 spoke to him whist at a printer in the Respondent’s office.	
1 July 2020	The Applicant again consulted Dr Syed who recorded that she was teary and recorded ‘work is giving hard time to accept liabilities’. The notes document that the Applicant consulted Dr Syed on numerous occasions for a wide range of complaints until she ceased work on 6 January 2021 however she continued to work during this period and was not incapacitated due to psychological/psychiatric illness.	
6 January 2021	The Applicant last worked for the Respondent on this date and then went on holidays. The Applicant submits that this is the appropriate date of injury as it is the last day that the Applicant works and therefore the first date of incapacity.	
7 January 2021	The Applicant consulted Dr Syed for a mild headache which is said to have been subsided.	
18 January 2021	Dr Syed is consulted by Applicant and is told that she contracted scabies whilst on holiday.	
22 January 2021	The Applicant contracted a virus and was admitted to Liverpool Hospital and diagnosed as suffering polyarthritis.	
1 February 2021	The Applicant was discharged from hospital.	
10 February 2021	The Applicant told Claire George that she hoped to return to work on 8 March 2021 (R19 P59)	
14 July 2021	The employer wrote to the Applicant.	
19 July 2021	The Applicant consulted Dr Syed who recorded a history of her having issues at work. It should be noted that the Applicant attended upon Dr Syed on numerous occasions from the time that she was discharged from hospital, but this is the first reference to issues at work.	
27 July 2021	The Applicant consulted Dr Syed and for the first time she gave him [sic] a history of being bullied and harassed.	
6 August 2021	The Applicant was provided with a medical certificate certifying her as being totally unfit for work from this date, with a diagnosis of stress and anxiety with depressed mood relating to bullying and harassment with the date of injury being said to be 30 January 2018 (RLD P109)”	
55.	Mr Grant said that there is no evidence that Ms Turner was incapacitated as a result of a psychological injury before 6 January 2021. He said that the injury was the aggravation of a pre-existing condition as defined in s 4(b)(ii) of the 1987 Act and that the date of injury was fixed by s 16.
56.	Mr Grant said that on a reasonable analysis of the evidence, Ms Turner was not incapacitated by her psychiatric disorder until 27 July 2021. She did not say in her statement that she ceased work for any reason other than to go on holidays and that is supported by her consultation with Dr Syed on the day after she commenced holidays.
57.	The deemed date of injury, Mr Grant submitted, was therefore 27 July 2021 by the operation of s 16(1)(a)(i) of the 1987 Act. Her PIAWE was $634.25, based on the 52 week period of 29 July 2020 to 27 July 2021. He said that the bonus payments should not be included because they were a “payment made without obligation by the employer” within the meaning of Sch 6 cl 3 of the 1987 Act.
58.	Two calculations of PIAWE were attached to the submissions, setting out the figures for the dates of injury contended for by each party. For the date of injury of 6 January 2021, gross earnings were $48,304.34 from which HammondCare deducted bonuses totalling $1,400 to reach PIAWE of $908.16. (If the bonuses are not deducted, PIAWE are $928.29.) For the date of injury of 27 July 2021, PIAWE are $634.25 (or, if bonuses are included $686.75).
59.	I was not taken to any evidence to explain why bonus payments of $600 on each of 10 August 2020 and 21 October 2020 and $480 on 24 February 2021 were paid. The payslips attached to HammondCare’s submissions describe them as “RetenBonus” and “HC Thx Bns”.
Reply
60.	In reply, Mr Barter agreed that the date of injury could be calculated by reference to s 16(1)(a)(i) and accepted the chronology in HammondCare’s submissions, save for the assertion that Ms Turner was not incapacitated on 1 July 2020. He said that incapacity for the purpose of determining PIAWE need not be reflected in economic loss or even time off work.
FINDINGS AND REASONS 
61.	The notes from Dr Syed clearly show that Ms Turner had a pre-existing condition. Mr Barter conceded in reply that the injury was an injury as defined by s 4(b)(ii) of the 1987 Act:
“4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a)	means personal injury arising out of or in the course of employment,
(b)	includes a disease injury, which means—
(i)	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
62.	Section 16(1) therefore applies to fix the date of injury:
“16 Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A))
(1)	If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)	the injury shall, for the purposes of this Act, be deemed to have happened—
(i)	at the time of the worker’s death or incapacity, or
(ii)	if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)	compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
63.	In Hungerford, Keating P quoted further from O’Keefe, immediately after the paragraph Mr Barter quoted:
“These cases also decided that s 16(1)(a)(i) only applies to a claim for weekly compensation, and that the section fixes different dates of injury for different purposes. In GIO at 196 Sheller JA, who gave the principal judgment said, of the comparable provision in s 15(1)(a)(i), that the reference to incapacity was ‘a reference to the incapacity for which compensation is claimed’...
…
In Berkeley [2000] NSWCA 214; [2000] 49 NSWLR 481 at [28]-[30], Priestley JA, who gave the principal judgment, held that s 16(1) refers to incapacity creating an entitlement to weekly compensation. ...”
64.	Incapacity is not defined in the legislation. Section 33 of the 1987 Act provides that weekly payments are payable if total or partial incapacity results from an injury. The Court of Appeal dealt with the relevant concepts in the context of earlier version of the legislation in P & O Berkeley Challenge Pty Ltd v Alfonzo, referred to above. Priestly JA said:
“…This indicates, although of course not conclusively, that the general sense of incapacity in the Act is a state of the health of a worker which affects his or her earning capacity or opportunities for employment. This is, generally speaking, consistent with both Yacob and Holden.
22	However, the way in which Division 2 makes total or partial incapacity the medium for weekly compensation is by means of s 33, which says that where total or partial incapacity results from an injury, compensation ‘shall include a weekly payment during the incapacity’. ‘Weekly payment’ is defined in s 3(1). Reading that definition into s 33, the section provides that compensation payable by an employer to an injured worker for total or partial incapacity for work resulting from an injury shall include a weekly payment of compensation under Division 2 in respect of a period of total or partial incapacity for work. 
23	Section 34 then proceeds to give ‘incapacity’ a particular significance.
…
24	Section 34 thus makes it plain that incapacity, for the purposes of Division 2, is incapacity falling within the period during which a worker has become entitled to weekly payments of compensation for incapacity.”
65.	The current version of Div 2 Subdiv 2 of the 1987 Act which quantify a worker’s entitlement to weekly compensation rely on the definitions of current work capacity and no current work capacity in Sch 3:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)	An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)	An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
66.	Those definitions stress that the concept of incapacity for work is linked to the inability to perform pre-injury employment.
67.	Ms Turner relied on events throughout her period of employment as causing her injury but there is no evidence that those events caused any incapacity to perform her pre-injury employment until August 2021. Her statement is quite brief, though it is supported by a chronology of events. There are some references to anxiety being aggravated in that chronology.
68.	Dr Morris noted Ms Turner’s history of anxiety and depression and he had access to Dr Syed’s notes. He diagnosed an injury rather than the aggravation of a pre-existing condition. He nominated the date of injury as 30 January 2018 which is consistent with Dr Syed’s medical certificates and obtained a history of the “first incident which upset her” occurring in January 2018. Ms Turner did not rely on events in 2018 in her statement or chronology. Dr Morris’s reports do not assist in determining the date of injury. It is likely that his report was written before the issue arose.
69.	Ms Turner consulted Dr Syed frequently for a variety of medical conditions, attending the surgery at least once per month but usually more often. Dr Syed’s notes provide a history of Ms Turner’s medical conditions, recorded on a contemporaneous basis. They are important for that reason and because they are relatively detailed. Dr Syed’s notes provide the most assistance in determining the date of incapacity. 
70.	Dr Syed’s notes reveal that Ms Turner suffered depression in 2009. She suffered significant anxiety and depression as a result of events surrounding the death of her husband in 2014 and other family events which she discussed with Dr Syed. In 2015 Dr Syed recommended CBT (which I understand to mean cognitive behavioural therapy) in respect of issues with foster children. She recommended it again in 2016 in the same context. In February 2019, five years after her husband’s death, Ms Turner told Dr Syed that she was feeling down, noting that he had died in the month of February. Notably, on each occasion on which Dr Syed recorded that Ms Turner was suffering from anxiety and depression, she recorded the reason Ms Turner gave for seeking treatment.
71.	Dr Syed did not record any history of an event in January 2018. In July 2019 Ms Turner saw Dr Syed in respect of anxiety and depression. The history recorded did not include work events and Dr Syed noted that she “loves her job”. In August 2019 Dr Syed recorded that she was “still very depressed.” She again referred Ms Turner for CBT.
72.	There are records of medical certificates for a significant number of days off work but there are no references to anxiety and depression as a result of bullying. There were consultations with Dr Syed which were roughly contemporaneous with the meeting in June 2020 described by Ms George at which performance issues were raised but there is no history which would permit a finding that Ms Turner suffered any incapacity for work as a result of a psychological injury at that time. Ms George’s evidence confirmed that HammondCare accommodated Ms Turner’s request for a change of manager.
73.	Later in June 2020 Ms Turner contracted scabies in the course of her employment and it is in that context that there are references in Dr Syed’s notes to a workers compensation claim being made and “liabilities” being accepted. Ms Turner said in her chronology of events that HammondCare initially did not want to cover her. In dealing with that claim, Dr Syed undertook a mental health consultation on 1 July 2020 at which she recorded that two warnings were given “before” for issues which Ms Turner did not think were her fault. Ms Turner said in her statement that she told Dr Syed that she had been having a tough time with work. Despite that, there is no evidence that Ms Turner was incapacitated at that time for any reason other than scabies. 
74.	After her recovery, Ms Turner returned to work. Ms Turner said in her chronology that in October 2020 she “started to feel she was at the doctor’s all the time with stress headaches.” Dr Syed did see her on 21 September 2020 and noted that she had been “tired and a bit headachy.” Dr Syed recorded that Ms Turner was not happy with the workload but did not record any complaint about the way she was treated. There are no other references to headaches around that time. Later in October, Ms Turner’s reports to Dr Syed of stress were in relation to her father’s illness.
75.	The chronology in Mr Grant’s submissions is consistent with Dr Syed’s notes, with the exception that Ms Turner did not commence annual leave on 6 January. Ms George said that Ms Turner ceased work early on 6 January then had three days off. Dr Syed’s notes for Thursday 7 January record that Ms Turner had a mild headache which resolved after rest and Dr Syed provided a certificate for one day only. Her notes for that day do not support the contention that Ms Turner was incapacitated on an ongoing basis because of a work related aggravation of anxiety and depression.
76.	Ms Turner said in her statement that she commenced annual leave on 7 January 2021. She did not say that she was unable to work by reason of a psychological condition. Ms Turner told Dr Morris that she was anxious and worried about her return to work while on holidays. He did not express an opinion as to when her incapacity commenced, other than to say that he agreed with Dr Syed that she was unfit at the date of his report.
77.	Ms Turner’s annual leave was to commence on Monday 11 January and she was due to return to work on 18 January. On that day she saw Dr Syed with another infection of scabies which “was in hotel bed.” Soon after, Ms Turner was admitted to hospital with a viral infection. She was certified unfit as a result of that infection and its aftermath.
78.	There is no reason not to accept Ms George’s evidence that Ms Turner told her in February 2021 that she anticipated returning to work on 8 March 2021. That evidence does not support the contention that Ms Turner suffered incapacity for work as a result of a psychological injury at that time.
79.	In July 2021 Dr Syed recorded that Ms Turner was having issues with work which were non-medical. The consultation was just after Ms George’s letter dated 14 July 2021. On 27 July 2021 Dr Syed noted that Ms Turner sought to make a compensation claim in respect of treatment by a particular manager since 2019. Dr Syed recorded that Ms Turner had mentioned the issue to her many times. That note is inconsistent with Dr Syed’s careful record of the reason Ms Turner gave on each occasion when she consulted Dr Syed for a psychological condition. When the claim was declined, Dr Syed said that she anticipated that result and noted that she had asked Ms Turner to collect evidence but “she was pushing” to make the claim. There is no report from Dr Syed.
80.	Dr Syed’s evidence supports a finding that the date of first incapacity as a result of Ms Turner’s accepted psychological injury was 27 July 2021. That is the date of injury fixed by s 16(1)(a)(i). Dr Syed provided a medical certificate on 6 August. 
81.	Even Ms Turner’s statement does not support the contention that she suffered incapacity as a result of her work related psychological injury before that time. The statement supports the conclusion that she suffered some psychological symptoms which did not lead to her ceasing work.
82.	For those reasons, I find that the deemed date of injury is 27 July 2021. On that basis, Sch 3 cl 2(2) of the 1987 Act provides that the earnings to be used in the calculation of PIAWE are the earnings in the 52 week period ending immediately before 26 July 2021.
Bonus payments
83.	Earnings for the purpose of the calculation of PIAWE are defined in Sch 3 Cl 6:
“6 Meaning of ‘earnings’
(1)	The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.
(2)	The income of a worker does not include—
(a)	any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or
(b)	the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or
(c)	any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme, or
(d)	any payment made without obligation by the employer.”
84.	As noted above, the evidence does not explain why the bonuses were paid. The word “bonus” connotes something additional to ordinary wages. Ms Turner did not provide any evidence to show that her contract required the payment of a bonus in specified circumstances or whether any specified circumstances had been fulfilled. In the absence of any evidence, I conclude that the bonus payments were made without obligation by HammondCare and are therefore to be excluded from the calculation of PIAWE.
85.	There is no dispute about the calculations schedules attached to HammondCare’s submissions. When the bonuses are excluded, Ms Turner’s earnings in the 52 week period before the date of the injury total $21,975.99 and her PIAWE are $634.25. Ninety-five percent of that sum is $602.54 and 80% is $507.40.
86.	The claim for compensation commences on 14 October 2021. 
87.	I make the following orders:
(a)	I find that 
i)	the deemed date of injury under s 16(1)(a) of the 1987 Act was 27 Jul 2021, and
ii)	Ms Turner’s PIAWE were $634.25.
(b)	I order HammondCare to pay weekly compensation at the following rates:
i)	$602.54 from 14 October 2021 to 13 January 2022, and
ii)	$507.40 from 14 January 2022 to date and continuing.